Overview of Article 32 Hearing
In order for military charges and specifications to be be referred to trial by General Court-Martial, the case and evidence must be considered by a Preliminary Hearing Officer in an Article 32 Preliminary Hearing prior to referral to the General Court-Martial.
Uniform Code of Military Justice Article 32
Rules of Court-Martial 405
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What Takes Place during Article 32 Preliminary Hearing?
Prior to the Article 32 Preliminary Hearing beginning, a Preliminary Hearing Officer (“PHO”) is appointed to consider the case, witnesses, documents, and other evidence presented by the trial counsel and military defense counsel. The Preliminary Hearing Officer is tasked to make a recommendation to the Convening Authority as to the following:
- Does probable cause exist for all, some, or none of the charges and specifications presented by trial counsel?
- How should the case be charged at Court-Martial
- How should the case be resolved, i.e. General Court-Martial, a less serious Court-Martial proceeding, or dropping all charges
These recommendations are non-binding; however, they are given much weight by the Convening Authority in determining the course of action after the Article 32 Preliminary Hearing is complete.
The Article 32 Preliminary Hearing Officer may make a wide variety of recommendations, including: recommending the case proceed to a General Court-Martial, charges be amended or added, the case proceed to a Special Court-Martial, an administrative or alternative disposition be used (administrative discharge, resignation, or a form of non-judicial punishment), and/or that the case be dismissed completely.
Although military prosecutors often consider Article 32 hearings meaningless formalities in the Court-Martial process and simply a stepping stone to referral of charges to trial by Court-Martial, our Fierce Advocates stand fast on our belief and dedication to Article 32 Preliminary Hearings being a crucial phase in the defense of any military service member facing a Court-Martial proceeding. We are able to attack evidentiary issues, legal issues, and other substantive points that should impact the outcome of the case. Some arguments are presented to the Preliminary Hearing Officer; however, really aimed at the ears of the prosecutor to alert them to obstacles in the Court-Martial that we are confident they cannot overcome.
This page is intended to provide guidance for service members and their families when facing a General Court-Martial proceeding, plus a deep dive of the process and players in an Article 32 Preliminary Hearing. The remainder of this page is a script and overview of a typical Article 32 Preliminary Hearing.
Article 32 Preliminary Hearing Script
Introduction
Preliminary Hearing Officer: This Article 32 Preliminary Hearing is called to order at INSTILLATION (Fort Sill, Tinker Air Force Base, Vance Air Force Base, etc.) at HOURS, DATE.
Next the Preliminary Hearing Officer will introduce himself/herself to those present on the record, which will be followed by the next portion of the hearing:
Preliminary Hearing Officer: I have been appointed as the Preliminary Hearing Officer under Article 32(b) of the Uniform Code of Military Justice to conduct a preliminary hearing into certain charges against you by order of COMMANDER, UNIT, BRIGADE.
The Charges alleged in general are as follows / I will conduct an inquiry into the matters set forth on the charge sheet dated (date of preferral) in the case of (rank, name, and service of accused), the accused.
- One specification of violation of Article No ___, Allegation
- One specification of violation of Article No ___, Allegation
- Etc.Present at this hearing are myself (rank, name, and service of PHO), the detailed preliminary hearing officer; the accused (rank, name, and service of accused); defense counsel (hopefully the Fierce Advocates for Military Justice defendants at Cannon & Associates); and counsel for the government (rank, name, and service of GC);Present also is (rank, name and service of reporter), who has been detailed as the reporter for this preliminary hearing.In Article 120, Sexual Assault or related allegations that include a victim detailed a Special Victim’s Counsel, the victim will be represented at the Article 32 hearing by their Special Victim’s Counsel (SVC), in which case the Preliminary Hearing Office will state something similar to the following:
Present also is the reported victim in this case, (rank, name, and service of victim; Mrs./Ms./Mr. and name, if civilian) along with his/her victims’ legal counsel (rank, name, and service of VLC; Mrs./Ms./Mr. and name, if civilian).]
Preliminary Matters
Preliminary Hearing Officer: before beginning the formal preliminary hearing and examination of any of the witnesses in this case, I must inform you that you have the right to be represented by qualified legal counsel at all times during this hearing. This means you have the right to be represented by a civil lawyer (Your Fierce Advocates, Cannon & Associates), but at no expense to the United States; by military counsel of your own selection if that counsel is reasonably available; or by counsel detailed by the Trial Defense Service to represent you during the preliminary hearing. Do you wish to be represented by counsel, and, if so, by whom do you wish to be represented?
Accused: Cannon & Associates and/or detailed Trial Defense Counsel.
Preliminary Hearing Officer: Counsel, at this time state your legal qualifications, status as to oath, the authority by whom you were appointed and/or detailed, and any disqualifying capacity in which you may have acted.
Trial Counsel: I am (rank, name, and service of Trial Counsel). I am certified in accordance with Article 27(b) and sworn in accordance with Article 42(a) of the Uniform Code of Military Justice. I have been detailed to this preliminary hearing by (rank, name and command), the convening authority. I have not acted in any disqualifying manner.
Military Defense Counsel: I am John P. Cannon. I am civilian attorney. My office is located at 809 East 33rd Street, Edmond, Oklahoma 73013. My mailing address is the same. My office phone number is (405) 657-2323. I am a member of the Oklahoma Bar Association and I am in good standing.
Preliminary Hearing Officer: Do you swear you will faithfully perform all the duties of defense counsel in the case now in this Article 32 preliminary hearing?
Preliminary Hearing Officer: It appears civilian military defense counsel representing the accused has the requisite qualifications under the Uniform Code of Military Justice.
Voir Dire and Election of Counsel
Preliminary Hearing Officer: My name is (rank, name, and service of PHO). I am a commissioned officer / Judge Advocate certified in accordance with Article 27(b) and sworn in accordance with Article 42(a) of the Uniform Code of Military Justice. I am not aware of any grounds that may disqualify me as the Preliminary Hearing Officer.
Next the Preliminary Hearing Officer will ask, if defense counsel or trial counsel is aware of any grounds that may disqualify the Preliminary Hearing Officer from conducting the Article 32 hearing, if either side wishes to question the Preliminary Hearing Officer, or challenge the Preliminary Hearing Officer.
If you or your chosen military defense counsel believe a challenge exists or desire to question the Preliminary Hearing Officer concerning his or her qualifications to stand as the Article 32 Hearing Officer, this is the time to do so. The hearing will be reset with another Hearing Officer, if a proper challenge or conflict exists.
Preliminary Rights Advisement
Preliminary Hearing Officer: Do you have a copy of the charge sheet?
Accused: Yes sir or ma’am.
Preliminary Hearing Officer: Do you waive reading of the charge sheet?
Counsel for Accused: In some instances our Fierce Advocates will waive reading the charge sheet, if trial counsel, the prosecutor, has missed an important fact or failed to properly allege the charges and specifications. Once the government rests, the prosecutor is unable to amend or correct deficiencies in the charge sheet, which can be to your advantage.
If you elect to have the Charge Sheet read to you the following or something similar will be stated:
Preliminary Hearing Officer: You are alleged to have committed the following violations of the Uniform Code of Military Justice: Specification One of Charge One alleges a violation of Article ___ of the Uniform Code of Military Justice, alleging specifically (factual allegations for each charge and specification pending against the Accused).
The charges were preferred by (rank, name, and service of commander / accuser of the Charge Sheet, DD Form 458), a person subject to the UCMJ and sworn before (name of officer that signed the affidavit), a commissioned officer authorized to administer oaths.
Preliminary Hearing Officer: You have the right to remain silent and you may refuse to make a statement regarding the allegations or any offense which you are accused or under investigation pursuant to Article 31 of the Uniform Code of Military Justice. The choice to make a statement or remain silent cannot be used against you in any way and I as the Preliminary Hearing Officer may not consider your silence as evidence for or against you. Do you understand your right to remain silent?
Article 32 Hearing Procedure Advisement
Preliminary Hearing Officer: I will now advise you of the procedure for this Article 32 hearing.
First, trial counsel will present documents relevant to this preliminary hearing. The trial counsel will next call any and all witnesses offered, you or your defense counsel will then have the opportunity to cross examine those witnesses. I will then ask questions I have of each witness and permit trial counsel and defense counsel to re-direct and cross-examine the witness as necessary.
Next, defense, you and your defense counsel will be allowed to offer documentary evidence and witnesses, which you and your defense counsel believe are relevant for this proceeding. After your defense counsel’s direct examination of witnesses, trial counsel will be allowed to cross examine the witness. Finally, I will ask questions of the witness and permit re-direct and cross-examination of the witness as necessary.
Counsel for the government and defense counsel may object to any evidence presented here; however, the military rules of evidence are generally not relevant in this proceeding and reserved for courts-martial. Exceptions to the general rule of admissibility are as follows: the rules governing privilege, degrading questions, past sexual conduct or behavior by the victim of a sexual assault, and relevancy under Military Rules of Evidence 401. Objections will be noted for the record; however, you should proceed based on my rulings on objections.
Do counsel for either side have questions regarding this procedure or the way in which the preliminary hearing will be conducted today?
Does Counsel for the government or defense counsel have any preliminary objections that they wish to be addressed or noted, prior to beginning the preliminary hearing?
Government’s Case in Chief
Preliminary Hearing Officer: Is the government prepared to present its evidence?
Trial Counsel: Yes sir/ma’am.
Preliminary Hearing Officer: Does the government have any real or documentary evidence to present?
Trial Counsel: [At this point in time the government will present real or documentary evidence.]
Preliminary Hearing Officer: Does defense counsel have any objections to any of the real or documentary evidence presented by trial counsel?
Defense Counsel: [at this point defense counsel will raise objections to evidence that should not be considered by the Preliminary Hearing Officer, or should only be considered in a limited capacity. Additionally, if evidence has not been previously provided by trial counsel, this is an appropriate time for defense counsel to raise objections on those grounds or to request a complete copy of the proffered evidence.]
Preliminary Hearing Officer: Please list all of the witnesses the government intends to call and the form of their testimony today?
Trial Counsel: [lists all witnesses to be presented and the method of their testimony]
Preliminary Hearing Officer: [administers oath to each witness prior to their testifying]
Do you swear or affirm that the evidence you are about to give at this hearing will be the truth, the whole truth, and nothing but the truth, so help you God?
Trial Counsel: [trial counsel will conduct direct examination of each witness]
Defense Counsel: [conducts cross-examination of each witness; however, it is advisable to not ask all questions that will be relevant at courts-martial, as it may tip trial counsel or the witness off to issues or problems with testimony that may not be dispositive for the Article 32 hearing.]
Preliminary Hearing Officer: You are instructed not to discuss your testimony with anyone except counsel for the government or counsel for the accused. You shall not speak with any other witness in this preliminary hearing about your testimony or their testimony. If anyone should attempt to communicate with you about your testimony or any other issues related to your appearance or participation here today, you shall contact the counsel that originally called you as a witness and notify them of the event that occurred.
[In the case of a military witness] Note my order instructing you not to discuss your testimony or the testimony of any other witness here today is a lawful order, the violation of which can or will subject you to penalties under the Uniform Code of Military Justice.
Preliminary Hearing Officer: Does the government have any additional witnesses to present?
Trial Counsel: Yes/No sir/ma’am.
Defense Case in Chief
[the defense may present matters in defense and mitigation relevant to the purpose of the Article 32 Preliminary Hearing.]
Preliminary Hearing Officer: [Name and rank of accused] I previously explained your right to present evidence and call witnesses to testify on your behalf in your defense and as mitigation. Do you or your defense counsel have any evidence or witnesses that you wish to present?
Defense Counsel: Yes/No sir/ma’am.
Preliminary Hearing Officer: Please list all of the witnesses the defense intends to call and the form of their testimony today?
Defense Counsel: [lists all witnesses to be presented and the method of their testimony]
Preliminary Hearing Officer: [administers oath to each witness prior to their testifying]
Do you swear or affirm that the evidence you are about to give at this hearing will be the truth, the whole truth, and nothing but the truth, so help you God?
Defense Counsel: [trial counsel will conduct direct examination of each witness]
[After each witness has testified, the Preliminary Hearing Officer will advise the witness of the above stated admonition/order to not discuss testimony.]
Preliminary Hearing Officer: Does the accused wish to make a statement orally or through counsel?
Defense Counsel: [although the accused has an absolute right to make a statement during the Article 32 preliminary hearing, our military defense counsel highly advises against. The information that the accused may present could lead to other charges and specifications by trial counsel and what could be accomplished by a statement by the accused is better served by argument of your military defense counsel.]
Conclusion of Article 32 Preliminary Hearing
Preliminary Hearing Officer: I will now hear brief closing comments/argument by trial counsel and defense counsel as it relates to my determination of probable cause, jurisdiction for this matter, the form of charges, disposition of charges, and any recommendation or additional charges. I will also permit the submission of closing statements in writing.
Government Counsel: [government counsel may give a closing statement or waive.]
Defense Counsel: [our Fierce Advocates for military justice will always make a closing argument, which is limited to jurisdiction, factual disputes, amendment to charges/specifications, and other preliminary matters. It is crucial to not tip your hand/strategy to trial counsel at this point; however, it is important to give the preliminary hearing officer sufficient argument to make rulings on your behalf.]
Preliminary Hearing Officer: Unless either trial counsel or defense counsel have anything further, this preliminary hearing is now concluded.
[The preliminary hearing officer will hold completion of the DD Form 457 until receipt and review of the recording of the preliminary hearing. The preliminary hearing officer will deliberate, typically for one to three days, reach conclusions of facts in the case and findings of law. Then the preliminary hearing officer will draft a legal opinion or decision, forward it to the Command Authority through trial counsel or the Staff Judge Advocate. Once the Article 32 Preliminary Hearing decision is reached, if any charges and specifications remain, arraignment will be scheduled for proceedings to move to the courts-martial and a scheduling order will be entered by the trial counsel.]
Defending your Rights at Your Article 32 Hearing
We hope this summary / transcript of a typical Article 32 Preliminary Hearing has been helpful in understanding the process you may be facing. Our Fierce Advocates defend military members from every branch of service throughout the court-martial process. Our military criminal defense attorneys are former and current JAG lawyers that defend service members and their families every day.
If you are facing military court-martial, allegations and an Article 32 Hearing, seek legal counsel and get the Fierce Advocate you need to fight your case.
Contact – Cannon & Associates: Oklahoma Fierce Advocates for Military Service Members
At Cannon & Associates, our attorneys have the experience and expertise needed to navigate the complex military justice system. We will throw our strength, expertise, and resources behind your case to defend your rights and fight your case.
Free Resources from OKC Federal Criminal Lawyers:
Our team of Your Fierce Advocates® at Cannon & Associates is led by Army Veteran founder, John Cannon. We are privileged to be Oklahoma federal criminal defense attorneys for clients facing federal criminal charges across Oklahoma in the Western District, Northern District, and Eastern District. Our Oklahoma federal defense lawyers fight for client’s pretrial release and freedom following indictment in Oklahoma federal criminal cases. Find FREE RESOURCES on our YouTube page and our website, until we meet to answer your specific questions. You may also CALL NOW at (405) 972-8604, 24 hours a day, and 7 days a week for a free case planning session!
Founder John Cannon has been recognized as a Super Lawyer, is a JAG lawyer, and our team is dedicated to Fierce Advocates for service members facing an Article 32 Preliminary Hearing or other military justice process. Contact Cannon & Associates by completing the CONTACT FORM ON THIS PAGE NOW or CALL at 405-657-2323 for a free confidential case evaluation.